Pádraig Mac Lochlainn (Donegal, Sinn Fein) | Oireachtas source

I move:

That Dáil Éireann resolves that the European Union (Common Fisheries Policy) (Point System) Regulations 2020 (S.I. No. 318 of 2020) be and are hereby annulled.

On behalf of all the fishing organisations Sinn Féin has spoken to, we support a penalty points system being put in place - it is essential - but the system must be fair and just. It is important that I outline the history of how we got here this evening. Previous statutory instruments introduced by Ministers in the Department with responsibility for the marine were ruled illegal by the High Court on a number of occasions. The issue went to the Supreme Court and the challenges by the fishermen were upheld.

Subsequently, SI 89 of 2018 was put in place by the Minister for Agriculture, Food and the Marine, Deputy Creed, who signed it. In May 2018 the Dáil came to debate an annulment motion, just like this one, and for the first time in the history of the State, the Dáil voted to annul a statutory instrument. It was immensely significant, it had never happened before and has not happened since.

I will quote from some of the debate. The proposer of the motion, who deserves great credit, was the former Donegal Deputy, Pat the Cope Gallagher, who had been Fianna Fáil's spokesperson on fisheries and marine. He said:

The statutory instrument states that the determination panel and the appeals officer if such is the case would determine on the balance of probabilities. We do not accept this principle of a lesser burden of proof. It is grossly unfair to the individual to lower the burden of proof. We will be proposing a statutory instrument we have prepared under which, in both instances, the case must be proven by the State beyond a reasonable doubt in line with common law principles.

Hear, hear. He continued:

To put it in simple language, the proposed structure under this statutory instrument would be similar to An Garda Síochána detecting an infringement, being allowed to select the judges to adjudicate on the case and finally handing down the eventual judgment.

I will now quote the current Minister for Agriculture, Food and the Marine, Deputy McConalogue, during the same debate on 23 May 2018:

We need to take on board the needs of the fishing sector. We need to avoid the possibility of it being struck down in the courts again. The Department's track record in introducing a penalty-points regime has been poor. Given that on two occasions attempted statutory instruments were struck down following appeals to the Supreme Court reflects very poorly on the management of the issue heretofore.

Later, he said:

The key points that remain to be addressed relate to the burden of proof. The current approach in the statutory instrument deals with the balance of probability rather than having to prove beyond doubt, which is normally the case where a criminal sanction is being pursued. The role of the Sea-Fisheries Protection Authority, SFPA, permeates the statutory instrument at all stages, which was the basis on which the Supreme Court struck down the previous statutory instruments.

We can see the concerns expressed by the Fianna Fáil spokespersons. Deputy Dara Calleary, the former Minister for Agriculture, Food and the Marine, expressed his concerns about the "burden of proof, the rights of appeal, penalty points capacity and some sort of realistic appeals timeframe". He spoke of a sense of alienation and of how it was getting deeper. He said:

Many of these communities are dying on their feet. The way this issue has been handled is adding to the sense that marine issues are not a priority, not just for the Government but for the central government system full stop. If we deal with this collectively as an Oireachtas and deal with it in a progressive way working together, we can start addressing these issues and lay some sort of pathway to addressing that alienation.

I endorse those remarks 100%.

The motion was passed, making it a historic motion.

In fairness to Pat the Cope Gallagher, not only did he have this statutory instrument annulled in the days that followed, he produced a document - I have read through it - containing amendments to the instrument. I have it with me. He did that in full consultation with the fishing industry. His amendments would have solved the problem, but nothing was done and time drifted on.

We then come to 28 August 2020, when the Taoiseach, as acting Minister for Agriculture, Food and the Marine, signed off on SI 318 of 2020, which was almost identical to the 2018 statutory instrument. The core objections were not addressed. I found out about it on a Friday evening. At first, I thought it had to have been a misunderstanding because there was no way the Taoiseach would have done that without consulting the fishing industry. However, I found out the next day that he actually had done it. I still thought that he might have been misled and that he had not understood the full implications of what had been done.

My party put this annulment motion on the Order Paper, but we held back because we talked to the fishing industry, which was of the belief that, if it engaged with the new Minister, Deputy McConalogue, he would surely see the need to make Pat the Cope Gallagher's amendments to the statutory instrument. By the way, I emailed those amendments to the Minister, but I have still not received a substantive response.

The producer organisations then met the Minister, which believed that they could turn the situation around. They were bitterly disappointed with that meeting. Subsequently, they sent a letter to the Minister on 18 September in which they identified four issues. First, the burden of proof is based on the balance of probabilities. As we all know, a prosecution must be beyond a reasonable doubt. That is the threshold, except for fishermen. Second, the points remain on a licence even in the event of the person or persons being exonerated in court. Third, the points attached to a licence if the tonnage is sold on multiplies on the next person's licence. Fourth, people can only appeal to the High Court on a point of law. No substantive response has been received to that letter to the Minister.

We are debating this matter because, incredibly, the Taoiseach has signed a statutory instrument that is in clear defiance of everything Fianna Fáil as a party did in 2018. He actually voted for the historic motion on 29 May 2019. I appeal to the Government to do the right thing. In particular, I appeal to the Deputies of the Fianna Fáil Party. I could have read quote after quote after quote. I would invite anyone to read the Official Report. I would not challenge a word of what a whole ream of Fianna Fáil Deputies said in that debate. Everything they said was spot on. It was powerful stuff, yet here they are as a party. How will they stand over this? It is profoundly unjust.

While dealing with Brexit, I spoke to a senior fisheries spokesperson in recent days who stated that this was the greatest threat to our industry since the foundation of the State. We have seen the submissions the industry has made to the previous Oireachtas committee. The industry is deeply concerned. I appeal to the Government to do the right thing and re-engage. I hope that its Members will not vote this motion down tomorrow, but even if they do, there is still a chance to amend the statutory instrument. The Irish South and West Fish Producers Organisation has already made it clear publicly that it will challenge this instrument in the courts again, but it should not have to. We have already spent a fortune in the Department of Agriculture, Food and the Marine going to the High Court and Supreme Court defending the indefensible. Will it do so again? Will this matter go to the courts again? We can avoid that. I am not being party political. Let us use the template of Pat the Cope Gallagher's amendments. What is the Attorney General's view on them? Has the Minister sought his view on whether they are permissible? I have no doubt that they are. Has there been proper engagement on this matter?

How the situation has been handled by the Taoiseach is a scandal. I am shocked that a solution has not been found. We did not want this debate. We would never have tabled this motion for Private Members' business had the fishing industry not told us to go ahead because it was not getting anywhere itself.

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